Clarifies, that in the absence of a patient's authorization, a trial subpoena duces tecum seeking the production of medical records may be issued by the court

This measure would make clear that, in the absence of a patient's authorization, a trial subpoena duces tecum seeking the production of medical records may be issued under CPLR 2302(b) by a court, but not an attorney, and that CPLR 3122, requiring a patient's authorization, applies only to subpoenas issued during discovery.

In 2002, on our Advisory Committee's recommendation and at our request, CPLR 3122 was amended, together with several other related CPLR provisions, CPLR 2305(b), 3120, and 3122-a, to make it easier to obtain discovery documents from a non-party witness and admit them into evidence. L. 2002, c.575. The legislation eliminated the requirement that a party seeking documents from a non-party witness obtain a court order and a new, less cumbersome procedure was substituted. Among the changes made to CPLR 3122, which governs objections to and compliance with disclosure requests, was the inclusion of language at the request of the Medical Society to protect non-party physicians who were served with disclosure subpoenas seeking medical records. Language was inserted in CPLR 3122 in 2002 to help protect medical providers from unwittingly violating the physician-patient privilege by releasing medical records sought by a subpoena without a patient's authorization.

Shortly thereafter, a judge in Richmond Civil Court in Campos v. Payne, 2 Misc.3d 921 (2003), held that the limitations imposed by CPLR 3122 left him without authority to order the production of medical records pursuant to a trial subpoena on the eve of trial without the patient's signed authorization. We understand that Campos is now widely followed. It was not our intent in recommending the amendment of CPLR 3122, however, that the requirement for such an authorization apply to trial subpoenas and we do not believe the Legislature had that intent in adopting our recommendation. We believe the result in Campos is inadvisable as parties and the court need to have the ability to obtain relevant records (including medical records) so that the parties' claims and defenses can be fairly adjudicated.

This measure addresses the concerns of medical providers that they may be violating the Health Insurance Portability and Accountability Act ("HIPAA") by releasing a patient's medical records absent a court order by making it clear in the article governing subpoenas that, if a patient has not authorized the release of medical records, then a subpoena duces tecum for medical records may be issued only by a court and not by an attorney. We recommend that CPLR 2302(b) be

amended by adding a sentence providing that absent an authorization a subpoena for medical records may be issued only by a court.

Under the current language of CPLR 3122 and the ruling in Campos·v. Payne there is some question whether a court may "so order" a trial subpoena duces tecum for medical records when the plaintiff has refused to authorize the release ofthe records. The proposed amendment to CPLR 3122(a) resolves that uncertainty by making it clear that the requirement for an authorization is not applicable to a trial subpoena issued by a court. The amendment is consistent with HIP AA, which provides that "protected health information" may be released without an authorization in response to an order of the court. 45 C.P.R. 164.512 (introductory paragraph) and 164.512(e)(1)(i).

This measure would have no fiscal impact on the State. It would take effect immediately.

2009-10 LEGISLATIVE HISTORY:

Senate 5960 (Sen. Schneiderman) [Codes] Assembly 8318 (M. of A. Zebrowski) [Codes]